WRIT OF ERROR to the Circuit Court of Tazewell County; the
Hon. HENRY J. INGRAM, Judge, presiding.
MR. JUSTICE MAXWELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 16, 1955.
An indictment filed in the circuit court of Tazewell County on February 9, 1953, charged that plaintiff in error, Walter Wheeler, and one Ellis R. Williamson committed the crime of armed robbery in that county on December 14, 1952. Wheeler's motion to quash the indictment was overruled and the case proceeded to trial as to Wheeler alone on May 14, 1953. Evidence was heard and the jury was unable to agree upon a verdict. The cause was tried as to Wheeler a second time beginning on December 14, 1953. The jury found him guilty as charged and that his age was 41 years. Motions for a new trial, for judgment notwithstanding the verdict and in arrest of judgment were overruled. Thereupon the court sentenced plaintiff in error to serve a term of not less than five years nor more than twelve years in the Illinois State Penitentiary. There are numerous assignments of error that have not been argued and are therefore waived. (People v. Ulrich, 411 Ill. 316; People v. Smith, 404 Ill. 125.) The ones properly presented for our consideration involve the admission of certain evidence over the objection of plaintiff in error, alleged improper remarks of the State's Attorney and a consideration of the sufficiency of the evidence in view of a defense of alibi. A review of the evidence presented by the record is therefore necessary.
The evidence for the People shows that plaintiff in error, Walter Wheeler, hereafter referred to as the defendant, and a person later identified as Ellis R. Williamson registered at a hotel called the Taylor House in Havana, Illinois, shortly after 8:00 P.M. on Friday, December 12, 1952. Defendant signed the register card with the names Kerry (or Kenny) Johnson and Harry Johnson. The room clerk, Fred Beck, assigned them to room 309 and they went upstairs together. The following morning at about 11:00 o'clock the men were seen leaving the hotel together by Ada Vanderarend, the clerk then on duty.
Between 4:30 and 5:00 o'clock P.M. on the same day (Saturday, December 13) two men, later identified as the defendant and Williamson, appeared at a tavern known as the Colonial Club located near Pekin, in Tazewell County. There they sat together at the bar where they were observed by Jack Cranwill, one of the owners who served them drinks, and by A.W. Farrar, the other owner of the club. On leaving, the men drove away in a Chrysler automobile. The same men returned to the tavern between 11:00 and 12:00 o'clock that night. On this occasion they sat at a table and a waitress served each of them a ham sandwich and a bottle of beer. While in the tavern they were observed by Jack Cranwill, A.W. Farrar, and Duane Hillemeyer, who had known defendant previously, as well as by the waitress who took their order. They left the premises shortly after midnight.
At about 2:00 o'clock A.M. on Sunday, December 14, the tavern in question was closed. A.W. Farrar, one of the owners, left about an hour later leaving Emma Bruder, a cleaning woman, on the premises. Jack Cranwill, the other partner, had left earlier and proceeded to walk toward his home which was located only about 120 yards from the tavern. As Cranwill approached his garage, defendant, who was armed, stepped from behind the building and ordered Cranwill back of the garage where Williamson was standing. Cranwill was held there at gunpoint until after everyone had left the tavern except the cleaning woman. Then the men forced Cranwill to walk with them to the tavern where all three entered. The interior of the tavern was well lighted at the time and neither of the robbers was masked. It was testified that defendant wore no hat but that Williamson had his hat on during the time of the robbery.
After entering the tavern, defendant held Mrs. Bruder at gunpoint while Williamson forced Cranwill to go to the kitchen where the safe was located. Cranwill opened the outer door of the safe by working the combination but found he had left his keys on the bar counter. A key was needed to unlock the inner door of the safe. The defendant and Mrs. Bruder then entered the kitchen with the keys and Cranwill opened the safe. Thereafter defendant tied the hands and feet of Cranwill and Mrs. Bruder and the men took from the safe a large amount of currency, checks and a cloth bag containing 199 silver dollars. After emptying the cash register and taking a gun belonging to the tavern the men left. Mrs. Bruder was able after a time to free Cranwill who then freed her. Cranwill went immediately to his house where he called the sheriff of Tazewell County. An alarm was broadcast.
At about 4:20 A.M. on the same date, Ivan Priddy, a police officer of the Havana, Illinois, department, received a radio message regarding the robbery and drove his squad car to a point on the highway east of Havana. After being there 20 to 25 minutes he observed a Chrysler car coming from the east at a high rate of speed. He followed it into Havana and thence to the parking lot behind the Taylor House. Two men got out of the car and entered the hotel. Fred Beck, the room clerk who had registered the men previously, saw the same two enter the hotel together sometime after 4:00 o'clock that morning. They went upstairs. Shortly thereafter the policeman, Ivan Priddy, entered the hotel lobby, had a conversation with Beck, and then went out. Defendant Wheeler, who had been upstairs only a short time, then came down, stated he was checking out and asked Beck for their bill. Beck stated the bill was not ready. Defendant then when across the street to a restaurant for coffee. Priddy and Sheriff Lascelles of Mason County followed the defendant to the restaurant where they placed him under arrest. Williamson came down the stairs in the hotel a short time later and was arrested by Priddy, Lascelles and a deputy sheriff.
Soon thereafter Sheriff George Saal of Tazewell County arrived and he and Sheriff Lascelles together searched room 309 which had been occupied by defendant and Williamson. They found a canvass traveling bag containing a cloth sack in which there were 199 silver dollars, and a suitcase, later claimed by defendant as his, containing a large amount of currency. On the morning of the same day, Sunday, December 14, both Emma Bruder and Jack Cranwill identified defendant as one of the men who had committed the robbery at the Colonial Club tavern.
Defendant testifying in his own behalf stated that prior to December 12, 1952, he had been working in a defense plant in Phoenix, Arizona. He had formerly lived in Canton, Illinois. He proposed to visit relatives up north and contacted Williamson, whom he had not known previously, for a ride after hearing that Williamson was driving in that direction. They drove from Phoenix to Havana in Williamson's Chrysler automobile, arriving in Havana on the night of December 12. Defendant admitted that the two occupied room 309 in the Taylor House but denied that he registered as testified by Beck. He denied that the writing on the registration card in the names of the two Johnsons was his.
Defendant further testified that late the following morning (December 13) he and Williamson drove to Peoria where he waited in the car while Williamson went into several places. They then drove to Pekin and late that afternoon went out to the Colonial Club where defendant admits they were present as testified by Cranwill and Farrar. After leaving the Colonial Club defendant says Williamson told him he was going to return to Peoria, whereupon defendant stated he preferred to see a movie in Pekin. The two then separated with arrangements to meet after the movie. Williamson was waiting for the defendant when he came out of the theatre. At defendant's request Williamson then drove defendant to Canton, Illinois, to the home of Mr. and Mrs. Robert Wilcoxen, where they arrived at about 11:00 P.M. Mrs. Wilcoxen is a sister of defendant's former wife from whom he had been divorced only a short time. Williamson did not enter the Wilcoxen home but drove away. Defendant was admitted by Mrs. Wilcoxen and talked to her and her husband until about 2:45 A.M. at which time defendant and Robert Wilcoxen departed, and Wilcoxen drove defendant to Havana in his Studebaker car. Defendant says they arrived in Havana at 3:45 A.M. and that after he bought a package of cigarettes he went up to room 309 in the Taylor House.
Defendant testified that Williamson came into the room about an hour later, took from under his coat a cloth sack apparently containing money and threw it on the bed. Defendant says he immediately thought something was wrong and went downstairs and asked Beck for his bill; that upon being advised that the bill was not ready, he went to the restaurant and was about to phone the Wilcoxens at Canton when the officers came in and arrested him. Defendant denied participation in the robbery and stated he had been in the Colonial Club only on the one occasion on December 13. He denied being there between 11:00 and 12:00 o'clock on the 13th, or at any time on the 14th.
Mr. and Mrs. Wilcoxen both testified that defendant was with them in their home in Canton between the hours of 11:00 P.M. on the 13th and 2:45 A.M. on the 14th, after which Wilcoxen drove defendant to Havana. Both stated that they learned of defendant's arrest on the same day it occurred but that they did not advise the authorities that defendant had been with them, having been advised to keep quiet about the matter by defendant's attorney.
In rebuttal the State offered in evidence certified copies of the records of two convictions of the defendant in the criminal court of Cook County of the crime of robbery, both in the year 1932. ...